JESSY Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER was appointed as Assistant Teacher in an aided primary school with effect from 4. 6. 1990. In the staff fixation order for 1990-91 one post was reduced on the ground that there was no sufficient accommodation for the school for the grant of 16 divisions. The management provided accommodation for getting sanction for the 16th division and applied for the fitness certificate from the Assistant Engineer. Accordingly, the fitness certificate was issued by the Assistant Engineer on 27. 8. 1990. Taking into account the availability of accommodation as evidenced by the certificate issued by the Asst. Engineer, the 3rd respondent - A. E. O. approved the appointment of the petitioner from 27. 8. 1990.

(2.) IN the meantime, the 5th respondent-Manager of the school preferred a revision petition before the 1st respondent -Government against the reduction in the class divisions and the non-approval of the appointment of the petitioner who was appointed against the 16th post. The revision petition was allowed by the Government as per Ext. P3 order dated 4. 5. 1991 according sanction for conducting 16 divisions during 1990-91.

(3.) THE learned counsel for the petitioner submits that in the light of Ext. P3 order issued by the Government according sanction for the 16th division during 1990-91 itself, the appointment of the petitioner should be approved from the reopening of the school for that academic year, ie., 4. 6. 1990. THE counsel submits that in terms of R. 12b of Chapter XXIII of KER the staff fixation order should take effect on the 15th of July every year and if any additional posts are sanctioned against which appointments are made in anticipation of sanction of such post or posts, such post or posts shall be deemed to have been created from the date of appointment. I am unable issued by the competent authority. In a case where these two conditions stands fulfilled from the date of reopening of the school and the Manager has made appointments against additional posts which can be legitimately anticipated and in fact, have subsequently been sanctioned by the staff fixation order, such additional post or posts can be deemed to have been created from the date of the appointments, inspite of the fact that the staff fixation order takes effect on the 15th of July every year. R. 12b of Chapter XXIII of K. E.R. does not take away the essential requirement of accommodation insisted by the other provisions in K. E.R. It is pertinent to note that r. 12 of Chapter XXIII, KER which deals with the strength of teaching staff opens with the words "subject to the availability of accommodation, the strength of teaching staff in each school shall be fixed " On a reading of Rr. 12 and 12b of Chapter XXIII, KER together, the intention of the rule making authority becomes very clear. I therefore hold that the date of the fitness certificate in proof of sufficient accommodation is a relevant factor while approving the appointments in terms of R. 12b of Chapter XXIII, KER and that divisions and posts cannot be sanctioned on a date prior to the date of the fitness certificate. No good grounds are made out to quash Exts. P4 and P5. Petitioner is not entitled to the reliefs prayed for in the Original petition. It is accordingly dismissed. . .